On Aug. 28, in the Constitutional Interpretation 793, Taiwan’s Council of Grand Justices ruled that provisions of the “Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations” (the “Act”) are constitutional, which gave a boost to transitional justice in Taiwan. When the country transformed from a dictatorship authoritarian rule to a democracy, the systematic violence and human rights violations of the country and the ruling political parties in the past, including the improper infringement of property, should be investigated. The perpetrators should be held accountable and victims should be redressed in order to repair the social trauma from past injustice, actively consolidate democracy and educate the next generation. Never again shall Taiwan have to endure the gloomy past. Nevertheless, in order to pursue democratic consolidation, it is indispensable in the process of transitional justice to come face-to-face with the historical injustice under past authoritarian rule.

The Act is undoubtedly a touchstone. As long as it is within the scope of systemic wrongdoing, truth-seeking and reparations will be pursued. This would include the violations of substantive justice and rule of law by the political parties through the use of their superior dominance to override and dominate the country and society under the party-state system. This approach comes from the simplest understanding of justice: “No one shall benefit from one’s own illegal actions” and “No one shall benefit from the loss of others.” The Roman law from 2000 years ago has long ago become the universal value forming the basis for the legislation of most countries and influencing people as well as political parties. An opposition once said that it has been 30 years after the end of martial law and the opening up of democratization, even political parties have rotated three times, which shows the influence of party assets is insignificant. “Therefore, there is no need to aggressively pursue redress.” On this basis, political parties and their affiliates should continue to retain the ill-gotten assets? This concept is so perplexing.

French philosopher Maurice Halbwachs developed the concept of collective memory and coined the term la mémoire collective in the 1920s. The theory states that the collective memory of a group or an ethnic group can be explored through the social roots presented by personal memories. Halbwachs believed that collective memory can be used to examine the interaction between present and past events in a specific social and cultural atmosphere. Memory is essentially the process by which social events are formed as the construction of collective memory will have the effect of confining the members of the group and leading to collective behaviors. Individuals evidently exist within the group, and beyond the level of individuals are many individuals that form a collective commonality.

The so-called “in our memories” is not actually “the memory of each person’s individual unique experience,” but the construction of individual and collective memories through the interactive, intermediary, or conscious communication between members. Does Taiwan society still remember the distortions, injustices and inexhaustible disasters under the dictatorship of the past? Why has our collective memory never been accurately and comprehensively recorded and recalled?

For Halbwachs, memory itself is social practice where individual and collective memories are intertwined for mutual stability. However, memory is not about “re-discovering” the deep impressions and perceptions stored in the memory but about modernizing the past. Truths and memories from the past cannot simply be reproduced, but must be placed in the present moment and be shaped and constructed from historical and social perspectives. The representation of collective memory (représentation collective) refers that as long as it involves the past and talks about history, it is in fact for the present. Individuals and social groups carry out the mission of “constructing the past for the present.”

Many transitional justice researchers have noticed Halbwachs of a hundred years ago. For Taiwan, facing the authoritarian past and regaining the desire for justice, we must recall the past together, understand the truth and retrieve the deep collective memory of Taiwan society, such as the plundering and injustice illustrated by the party assets. However, have the determination and will of Taiwan society really come to light?

Researchers have pointed out that, as indicated from various sources, the current political parties are striving for simplicity to make their political party platforms and policies more flexible and more appealing to accommodate to the likings of the public. In the end, one cannot clearly see the party’s policies. Gradually, the people will become accustomed to seeing it as an instrumental behavioral mode of the party that is a kind of opportunism without principles. In due course, the party and the people will work in collaboration to oppose democracy. Under this trend, more and more value will be placed on the judiciary and important political issues, where everyone is of the same mind, will be decided by the judiciary. Both the party and the people will be forced to use non-political ways such as litigation to achieve political goals.

The legal controversy triggered by the Act is ultimately a reluctance to genuinely face the dark past. It will only abuse the language of present political conflict, incontestably with the addition of misleading legal terms and accusations, and then the serious “political” thinking will fade. The collective memory of Taiwan society is the key to everything. Resting hope on Interpretation 793 can act as a new opportunity.

(Lin Jia-He, President of Taipei Society)

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